1. The application by the patentee of an old process to a new
subject, without any exercise of the inventive faculty and without
the development of any idea which can be deemed new or original in
the sense of the patent laws, is not the subject of a patent.
2. Evidence of what is old and in general use at the time of an
alleged invention is admissible in actions at law under the general
issue and in equity cases without any averment in the answer
touching the same.
3. The court can take judicial notice of a thing in the common
knowledge and use of the people throughout the country.
Piper filed a bill to enjoin Brown and Seavey from infringing
two patents, one of which, not being insisted on at the hearing,
need not be considered. The other -- No. 732, dated March 19, 1861
-- makes claim as follows:
"Preserving fish and other articles in a close chamber by means
of a freezing mixture, having no contact with the atmosphere of the
The defendants by their answer, among other objections not
necessary to be mentioned, denied the novelty of the alleged
The court below rendered a decree sustaining the validity of the
patent and perpetually enjoined the defendants from using or
employing the invention therein described. They bring this
Page 91 U. S. 38
MR. JUSTICE SWAYNE delivered the opinion of the Court.
The bill is founded upon two patents granted by the United
States to the appellee -- one numbered 732, of the 19th of March,
1861, the other numbered 36,107, and dated Aug. 5, 1862. The second
and later patent was not relied upon in the argument here, and may
therefore be laid out of view. Our attention will be confined to
the prior one. It is declared in the specification to be "for a new
and improved method of preserving fish and meats." The invention is
alleged to consist
"in a method of preserving fish and other articles in a
chamber,\ and cooling the latter by means of a freezing mixture so
applied that no communication shall exist between the interior of
the preserving chamber and that of the vessels in which the
freezing mixture is placed."
The specification continues:
"I do not profess to have invented the means of artificial
congelation, nor to have discovered the fact that no decay takes
place in animal substances so long as they are kept a few degrees
below the freezing point of water; but the practical application of
them to the art of preserving fish and meats, as above described,
is a new and very valuable improvement. The apparatus for freezing
fish and keeping them in a frozen state may be constructed in
various ways and of different shapes. The apparatus shown in the
drawing, however, will suffice to illustrate the principle and mode
The process and apparatus are then described as follows: a box
of wood or other suitable material, surrounded by a packing of
charcoal or other nonconducting substance, is to be provided and
the fish in small quantities laid in it on a rack. Metallic pans
filled with a freezing mixture, such as salt and ice, are then to
be set over them, and a cover shut over the pans. "In about
twenty-four hours, the freezing mixture having been changed once in
twelve hours, the fish will be frozen completely through."
After being frozen, the fish or meat may, if desired, be covered
with a thin coating of ice, and this coating may be preserved by
applying the substances named, which will exclude the air
Page 91 U. S. 39
and prevent the juices from escaping by evaporation.
"The fish are then to be packed closely in a large preserving
box which is enclosed in a still larger box, the space between the
boxes being filled with charcoal or other nonconducting material,
to exclude the heat."
Other minor details are described which it is not deemed
material to repeat. The patentee then declares:
"I do not desire to be understood as confining myself to the
specific apparatus above described, nor to the use of either or
both the preliminary processes of freezing and cooling, but I have
described the mode of operation, which, by experience, I have found
best for preserving the most delicate varieties of fish."
The summation and claim are:
"Having described my invention, what I claim as new and desire
to secure by letters patent is preserving fish or other articles in
a close chamber by means of a freezing mixture, having no contact
with the atmosphere of the preserving chamber, substantially as set
The patent is not for the principle long and well known to
physicists, that a low degree of cold, like a high degree of heat,
prevents the decay of animal matter; nor is it for the freezing of
the articles to be preserved before or after they are placed in the
preserving chamber; nor is it for applying, by means of an
apparatus with any particular details of construction, cold to the
articles to be preserved; nor is it for the frigorific effect of
the freezing mixture upon the atmosphere of the inner chamber; but
it is for the application to such articles of the degree of cold
necessary to preserve them, by means of "a close chamber," in which
they are to be placed, and "a freezing mixture, having no
communication with the atmosphere of the preserving chamber."
If this result be reached by the means designated in any way
substantially the same with that described, having the feature of
the noncontact of the freezing mixture with the air of the
preserving chamber, there is a clear invasion of the territory
which the patentee has marked out and seeks to appropriate to
It was earnestly maintained by the learned counsel for the
appellee that the essence of the invention is the creation of "a
freezing atmosphere" in the preserving chamber.
To this there are several answers. There is nothing in the
Page 91 U. S. 40
specification or claim to warrant the proposition. The direction
is that "the fish are to be packed closely." This implies clearly
that as many fish are to be put into the preserving chamber as it
can be made to contain.
Atmospheric air is itself an agent of decay, and in all such
cases it is important to preclude as far as possible its presence
and contact. "If air be absolutely excluded, putrefaction ceases
and the result is the preservation of the substance in some
circumstances, perhaps in all." 3 Ure's Dict. of Arts 548.
"On this principle is founded Appert's process, by which easily
decomposable articles of food and drink such as meat, fish,
vegetables, milk &c., are preserved for years -- viz.,
by packing them in air-tight bottles or soldered tin cans, heating
the vessels for several hours in boiling water, and keeping them
2 Watts's Dict. of Chem. 625. The patentee is to be presumed to
have known this property of air.
The patent is for "a new and useful improvement" in the art to
which it relates. It was issued under the Act of July 4, 1836. The
rights of the parties are to be considered in the light of that
act. The defense relied upon in the answer is the want of novelty,
and several instances of prior use and knowledge, with the
requisite circumstances of time, place, and persons, are
We deem it sufficient to consider one of them. On the 17th of
August, 1842, a patent was issued to John Good "for a corpse
preserver." The apparatus, as described, was an outer case with a
close-fitting lid. The case was made double, there being a
partition to within four or five inches, more or less, of the top
of the outer one, leaving a space between the two of several
inches, which was to be filled with ice. There was a false bottom
with holes in it in the inner compartment. It rested upon ledges,
which kept it four or five inches above the bottom. The intervening
space was a receptacle for ice. The corpse was deposited upon the
false bottom. A tray was placed over it and under the lid. The tray
was four or five inches deep, used to contain the freezing mixture,
and had a flange to prevent the mixture from escaping. Proper
outlets were provided for the passage of the water from the melting
ice. There was no communication between the tray containing the
Page 91 U. S. 41
mixture and the inner compartment containing the body. Swartz,
an intelligent and unimpeached witness, was examined on the 15th of
October, 1869. He testified that he was an undertaker, and had used
the apparatus for about twenty years, sometimes with ice under the
false bottom and sometimes without it. In either case, he applied a
sufficient degree of cold to prevent putrefaction before interment.
He thought the bodies were sometimes frozen, but was not certain.
The material point in his business was the prevention of decay for
the time being, and that was always accomplished.
Here was the application of the requisite degree of cold exactly
in the manner called for in the specification of the appellee.
This is hardly denied, but it is insisted that the process was
never applied by the witness to the preservation of fish and
The answer is that this was simply the application by the
patentee of an old process to a new subject, without any exercise
of the inventive faculty, and without the development of any idea
which can be deemed new or original in the sense of the patent law.
The thing was within the circle of what was well known before, and
belonged to the public. No one could lawfully appropriate it to
himself and exclude others from using it in any usual way for any
purpose to which it may be desired to apply it.
This is fatal to the patent. Ames v. Howard,
487; Howe v. Abbot,
2 Story 194; Bean v. Smalwood,
411; Winans v. B. & P. R., id.,
11 How. 248.
There is another view of the case that may properly be
Evidence of the state of the art is admissible in actions at law
under the general issue without a special notice, and in equity
cases without any averment in the answer touching the subject. It
consists of proof of what was old and in general use at the time of
the alleged invention. It is received for three purposes, and none
other -- to show what was then old, to distinguish what was new,
and to aid the court in the construction of the patent.
Page 91 U. S. 42
Of private and special facts, in trials in equity and at law,
the court or jury, as the case may be, is bound carefully to
exclude the influence of all previous knowledge. But there are many
things of which judicial cognizance may be taken. "To require proof
of every fact, as that Calais is beyond the jurisdiction of the
court, would be utterly and absolutely absurd." Gresley's Ev. in
Eq. 294. Facts of universal notoriety need not be proved.
Taylor's Ev., § 4, note 2. Among the things of which
judicial notice is taken are the law of nations, the general
customs and usages of merchants, the notary's seal, things which
must happen according to the laws of nature, the coincidences of
the days of the week with those of the month, the meaning of words
in the vernacular language, the customary abbreviations of
Christian names, the accession of the Chief Magistrate to office,
and his leaving it. In this country, such notice is taken of the
appointment of members of the cabinet, the election and
resignations of senators, and of the appointment of marshals and
sheriffs, but not of their deputies. The courts of the United
States take judicial notice of the ports and waters of the United
States where the tide ebbs and flows, of the boundaries of the
several states and judicial districts, and of the laws and
jurisprudence of the several states in which they exercise
jurisdiction. Courts will take notice of whatever is generally
known within the limits of their jurisdiction, and if the judge's
memory is at fault, he may refresh it by resorting to any means for
that purpose which he may deem safe and proper. This extends to
such matters of science as are involved in the cases brought before
1 Greenleaf's Ev. 11; Gresley's Ev.,
and Taylor's Ev., § 4, and post.
In the Ohio L. & T. Co. v.
16 How. 435, it was said to be "a matter of
public history which this Court cannot refuse to notice that almost
every bill for the incorporation of companies" of the classes named
is prepared and passed under the circumstances stated. In Hoare
12 Ad. & Ell.N.S. 624, it was held that
where a libel charged that the friends of the plaintiff had
"realized the fable of the frozen snake," the court would take
notice that the knowledge of that fable existed generally in
society. This power is to be exercised
Page 91 U. S. 43
by courts with caution. Care must be taken that the requisite
notoriety exists. Every reasonable doubt upon the subject should be
resolved promptly in the negative.
The pleadings and proofs in the case under consideration are
silent as to the ice cream freezer. But it is a thing in the common
knowledge and use of the people throughout the country. Notice and
proof were therefore unnecessary. The statute requiring notice was
not intended to apply in such cases. The court can take judicial
notice of it and give it the same effect as if it had been set up
as a defense in the answer and the proof were plenary. See M.
& A. Glue Co. v. Upton,
6 Patent Office Gazette 843, and
Needham v. Washburn,
651 -- both decided by
Mr. Justice Clifford upon the circuit. We can see no substantial
diversity between that apparatus and the alleged invention of the
appellee. In the former, as in the apparatus of the appellee, "the
freezing mixture" has "no contact with the atmosphere" of the
chamber where the work is to be done. If the freezer be full and
the preserving chamber be full, there would be room for but little
air in either. If either were only partially full, the vacuum would
be filled with that substance. The cold is generated by the same
materials and applied under the same circumstances. If the cream
were taken out of the freezer and fish put in, there would be in
all substantial respects the same apparatus, process, and result.
If the preserving chamber were as tight as the freezer, either
might be convertibly used for the purpose of the other.
"The preservative effect of cold, and especially of dry cold, is
well known and exemplified in the keeping of meat and fruit in ice
houses. Animals have been found undecomposed in the ice of Siberia
which belong to extinct species, and which must have been embalmed
in ice for ages."
Tit. "Antiseptic," 1 Amer. Encyclo. 570.
Artificial freezing is usually applied to water and articles of
"There are two general methods of effecting it -- viz.,
by liquefication and by vaporization and expansion. The method by
liquefication is performed by freezing mixtures, which are formed
by mixing together two or more bodies, one or all of which may be
solid. They are used together in vessels having three or more
Page 91 U. S. 44
concentric apartments -- an inner one, containing the article to
be frozen; one eccentric to this, containing the freezing mixture,
provided with some contrivance for agitation; one, again, outside
of this, filled with a nonconductor of heat, as powdered charcoal,
gypsum, or cotton wool; and sometimes one between them for holding
Tit. "Freezing," 7 Amer. Encyclo. 474.
Here the principle and substance of the appellee's claim are set
forth as belonging to the general domain of knowledge and science.
It is known that Lord Bacon applied snow to poultry to preserve it.
He said the process succeeded "excellently well." The experiment
was made in his old age, imprudently, and brought on his last
Examined by the light of these considerations, we think this
patent was void on its face, and that the court might have stopped
short at that instrument, and without looking beyond it into the
answers and testimony, sua sponte,
if the objection were
not taken by counsel, well have adjudged in favor of the
These views render it unnecessary to consider the exceptions to
the master's report.
The decree of the circuit court is reversed and the cause
will be remanded with directions to dismiss the bill.